Molia v R
[2013] NZCA 512
•23 October 2013 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA371/2013 [2013] NZCA 512 |
| BETWEEN | JOSEPH MOLIA |
| AND | THE QUEEN |
| Hearing: | 23 September 2013 |
Court: | French, Winkelmann and Panckhurst JJ |
Counsel: | L J Postlewaight for Appellant |
Judgment: | 23 October 2013 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of three years and six months’ imprisonment is quashed and a sentence of three years’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
Introduction
Mr Molia appeals a sentence of three years and six months’ imprisonment imposed following his plea of guilty to one charge of aggravated robbery.[1] He says that the sentence was manifestly excessive.
Factual background
[1]R v Molia DC Whangarei CRI-2012-088-3876, 16 May 2013.
In the early evening of 18 February 2012, Mr Molia and an associate went to a dairy in Kamo, Whangarei, armed with a slug pistol. They were wearing gloves and had their faces covered to disguise their identities. Mr Molia pointed the pistol at a member of the public outside the dairy and told him to stay where he was, which he did. Once inside the dairy, Mr Molia brandished the pistol at the dairy owner and told him to hand over the money in the cash register. The appellant and his associate then jumped the service counter, telling the owner to open the register. Another member of the public was in the dairy, and was told by Mr Molia to take what he wanted. This person declined, and then left. Mr Molia and his associate took cash and between 80 and 100 packets of cigarettes.
Mr Molia was not arrested for the offending until November 2012, after the police went looking for him at his home. Mr Molia was not there, but when he returned home and heard that the police had visited, he asked his family to take him to the police station, where he made a full confession.
Sentencing decision
Mr Molia was 18 at the time of the offending. He has no history of violent offending, but has two previous convictions for burglary and three convictions for wilful damage, all of these offences having been committed on the same day in April 2011. He has a further two convictions for wilful damage, both committed on the same day in December 2011. He has not previously received a sentence of imprisonment. He committed the aggravated robbery when he was subject to a sentence of supervision in respect of the December 2011 offending.
The pre-sentence report discloses that Mr Molia was raised by his grandparents, but maintained regular contact with his mother. However, when Mr Molia was 13, his mother was killed in a car crash along with her daughter, son and unborn child. Shortly after that Mr Molia was “kicked” out of school. He has obtained work harvesting kiwifruit and in the forestry sector. He has also been attending courses at Work and Income in the hope of finding more permanent employment. Alcohol and drugs are identified as contributing factors to his offending, but he is motivated to address this issue. He is in a steady relationship of two years duration. He has no children.
The sentencing Judge, Judge Harvey, described his approach to the sentence as follows:
[23] Until I heard from your counsel the way I was going to structure sentencing was to take as the starting point here, given the aggravating factors of this offending, a starting point of five years’ imprisonment. I was going to give you credit of one year for your plea of guilty. I am persuaded however that that is perhaps, given all of the circumstances a little harsh.
[24] Taking all factors into account you are now sentenced to a term of imprisonment of three and a half years. I do not intend to order you to pay any reparation. You are young. You have people who rely on you and I do not think it would be fair to them if I was to order you to pay reparation, particularly as you have never paid any in the past and, secondly, I do not wish to hold out false hope to the victims.
The Judge identified as aggravating features of the offending: clear planning and premeditation (evidenced by the use of disguises, and the fact that the offenders were wearing gloves and had a weapon with them), that there were members of the public present and that Mr Molia had pointed his pistol at two people. The Judge considered that a substantial amount of property was taken and said:[2]
Although I accept it is impossible for the loss adjustor to be exact, there was a total of just over $6000 worth of property that apparently went missing.
[2]At [14].
As to Mr Molia’s personal circumstances, he noted that the offending was influenced by his excess use of alcohol and cannabis and that, as a result of dyslexia, Mr Molia had left school without being able to read or write. As to mitigating factors, the Judge accepted that Mr Molia was entitled to credit for his guilty plea and given the circumstances of the plea he was minded to give the full 25 per cent credit available. He also said he took into account that Mr Molia was young and that he was remorseful for what he had done, but noted Mr Molia’s criminal history, particularly his five previous convictions for wilful damage and “more importantly” his two convictions for burglary.[3]
Submissions on appeal
[3]At [22].
Counsel for Mr Molia argues that the Judge erred in adopting too high a starting point (five years), probably because he gave too much weight to premeditation, overestimated the loss caused by the robbery, and because he assumed that Mr Molia had pointed the pistol at two members of the public when in fact it was only one. Counsel also argues that the Judge gave insufficient credit for Mr Molia’s youth and the extent of Mr Molia’s remorse (especially as that bore upon his prospects of rehabilitation), and that he failed to make any allowance for time spent on restrictive bail conditions.
The Crown submits that the Judge’s sentencing approach was completely orthodox and appropriate, subject to one qualification only. The Crown concedes that Mr Molia is entitled to some credit on his sentence on account of time spent on restrictive bail.
Discussion
The best practice is for sentencing to be undertaken in three steps. As summarised in R v Clifford, these steps are as follows:[4]
(a)Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.
(b)Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.
(c)Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 per cent prescribed by the Supreme Court in that judgment.
[4]R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60] (footnotes omitted).
Although the Judge identified the aggravating and mitigating factors he took into account, he did not state how he arrived at the sentence of three and a half years’ imprisonment in accordance with the three step approach. Because the Judge did not make explicit how he arrived at the final sentence, we find it difficult to assess the validity of any of the points raised on appeal. We have therefore concluded that it is appropriate to approach the sentencing exercise afresh.
As the Judge identified, the appropriate sentencing range is to be determined by reference to the Court of Appeal decision in R v Mako.[5] In that case, the Court discussed a common species of aggravated robbery in this way:[6]
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.
[5]R v Mako [2000] 2 NZLR 170 (CA).
[6]At [56].
In this case there were two offenders. Although two members of the public were caught up in events, the summary of facts narrates only that the pistol was pointed at one member of the public, not two, and we proceed on that basis. The pistol was, in any event, also pointed at the shopkeeper.
The Judge sentenced Mr Molia on the basis that just over $6,000 worth of property was taken. The Judge had a proper evidentiary basis for that conclusion. The Crown provided a loss adjustor’s report that set out how the figure was arrived at. This was not in conflict with the summary of facts and, in the absence of a dispute being notified, was a proper basis upon which to proceed to sentence. For a small business, this was a substantial loss of property, as the Judge characterised it.
We accept that there is no evidence of extensive preparation for this offending, but equally it cannot be characterised as “spur of the moment” or “spontaneous” offending. The offenders had at least taken the time to equip themselves with a weapon, and the means of disguise.
On these facts, it could be argued that the starting point was a little high. But the offending by Mr Molia was committed whilst he was still subject to a sentence of supervision, a fact not drawn to the attention of the Judge at sentencing. If a starting point of four years and six months is adopted, that starting point must be uplifted to reflect this personal aggravating factor. We consider that an uplift of six months is appropriate.
We then come to the mitigating factors – Mr Molia’s youth, his prospects of rehabilitation and his remorse. The Judge acknowledged Mr Molia’s youth and that he was now remorseful, then said:[7]
… but you do not have a good history. You have five previous convictions for wilful damage but more importantly two for burglary.
[7]At [22].
We agree that the fact that Mr Molia has previously offended constrains the extent of any youth discount available. So, too, does the seriousness of the offending. Nevertheless Mr Molia’s youth bears significantly upon his prospects for rehabilitation. Mr Molia was young at the time of the offending – just 18. His criminal record shows a spurt of offending over a narrow period of time, with nothing between this offending in February 2012 and his arrest in November. We appreciate these are narrow time frames from which to discern a pattern. But in a person so young narrow times frames are inevitable. Although Mr Molia has alcohol and drug issues, he has expressed a willingness to address them. Moreover, although he has had considerable hardship in his life through the loss of his mother and siblings, and the early end to his school life, Mr Molia had found work prior to his arrest and had been trying to fit himself for more stable employment through his engagement in Work and Income courses. He is also in a stable relationship and has the support of his grandparents. All of these factors are positive indicators that Mr Molia has good prospects for rehabilitation. For these reasons, we consider that a discount in the range of nine months is appropriate on account of youth.
There is also the discount the Crown concedes should be given for time served on restrictive bail conditions. Section 9(2)(h) of the Sentencing Act 2002 provides that time spent on electronic monitoring bail (EM bail) pending sentence is a mitigating factor to be taken into account. In this case, Mr Molia spent slightly over three months on EM bail, with a 24 hour confinement to his home. The Crown suggested a reduction of one to two months on account of the time spent on EM bail. We propose to allow a two month reduction.
That takes us to the final step of the sentencing process. We agree with the Judge that a full discount was appropriate and so allow a 25 per cent reduction on account of Mr Molia’s guilty plea.
Applying this conventional structured approach to sentencing, we arrive at a figure of roughly three years’ imprisonment. We consider that three years’ imprisonment is the appropriate sentence. It reflects the seriousness of the offending, but also society’s interest in the rehabilitation of a young offender.
Result
The appeal is allowed.
The sentence of three years and six months’ imprisonment is quashed and a sentence of three years’ imprisonment is substituted.
Solicitors:
Crown Solicitor, Auckland for Respondent
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